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[2018] ZAFSHC 101
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Senekal v Law Society of the Free State (1990/2018) [2018] ZAFSHC 101 (8 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1990/2018
In
the matter between:
SENEKAL
FJ
Applicant
and
LAW
SOCIETY OF THE FREE
STATE
Respondent
HEARD
ON:
10
MAY 2018
JUDGMENT
BY:
POHL, AJ
DELIVERED
ON:
8
JUNE 2018
I
INTRODUCTION
[1]
The applicant, an attorney of this
Court, sought interim relief against the respondent, being
the Law
Society of the Free State, pending the outcome of review proceedings.
II
THE RELIEF CLAIMED
[2]
Save for a prayer for condonation based on urgency which is not
repeated, applicant sought the following relief ex facie the
notice
of motion:
“
2.
That a rule nisi be issued calling upon the respondent to show cause,
if any, on ……. why an
order in the following terms
should not be made and confirmed:
2.1.
That the respondent be interdicted and restraint
from proceeding with the disciplinary proceedings against
the
applicant brought by the respondent against applicant under and/or in
terms of the Attorneys Act, 53 of 1979 and/or the
rules for the
attorneys’ profession promulgated in Government Gazette No
39740 dated 26 February 2016 on the 20
th
of April 2018 and/or any subsequent date;
in
the alternative,
commence
afresh with disciplinary proceedings against the applicant under
and/or in terms of the Attorneys Act….and/or the
rules for the
attorneys profession……, pending finalization of the
application launched by the applicant in this Court
under case number
1953/2018
to
review and set aside the resolutions and/or declaring invalid certain
resolutions passed and/or taken by the respondent in relation
to the
disciplinary proceedings brought by the respondent against the
applicant, as well as a further order directing the
respondent
to furnish the applicant with the documentation in terms of the
Promotion of Access to Information Act, 2 of 2000
; and
2.2.
That the respondent be ordered to pay the costs of this application
on an attorney and client scale, in the event of opposing
this
application.
3.
That prayer 2.1 above serves as an interim interdict with immediate
effect pending the finalization
of this application.”
III
BACKGROUND AND CHRONOLOGY
[3]
On 20 April 2018, Mr Phalatsi, who appeared in this matter for the
respondent, gave an undertaking that the respondent will
not proceed
with the disciplinary proceedings against the applicant, pending the
finalization of this matter. By agreement
between the parties,
I made that undertaking an order of Court when I then further
ordered, again by agreement, the
postponement of the
matter to 10 May 2018, with truncated times for the filing of
opposing and replying affidavits and heads
of argument.
[4]
The applicant was represented by Adv. L Halgryn SC, assisted by Adv.
C Snyman and as mentioned before, the respondent was represented
by
Mr N W Phalatsi.
[5]
On 3 May 2018, the applicant gave notice in terms of rule 28 of the
Uniform Rules of Court, of his intention to amend his notice
of
motion to the effect that an additional prayer be inserted which will
then read as follows:
“
4. Declaring
subsection (6) of section 72 of the Attorneys Act, 53 of 1979 is
inconsistent with the Constitution and invalid;”
At
the outset of the argument in this application, Mr Halgryn indicated
to the Court that the applicant withdraws the proposed amendment
and
that the applicant will probably seek such relief in the review
application. The respondent in any event opposed the
amendment
and the applicant also did not comply in this application before me
with Rule 10A of the uniform rules of Court. The
withdrawal of the
proposed amendment however obviated the need to deal with these
aspects.
[6]
On 24 March 2017, Lever AJ, made two orders in the High Court,
Northern Cape Division, Kimberley in case number 2496/16, in
which he
referred certain aspects to the respondent, the Free State Law
Society, to determine whether or not the applicant acted
in an
unprofessional manner and misled the Court in that case, where the
applicant was one of the parties. The relevant portions
of the
two orders read as follows:
“
3.
In matter no 2616/16 the matter is referred to the free state Law
Society to determine whether Mr. Senekal,
the 3
rd
Respondent misled the court or acted in a manner inconsistent with
his professional obligations to this court on the following
issues:
(a)
The
contentions made in the founding affidavit at pp 63679, specifically
paragraphs 122, 123 and 124 in relation to the allegation
that 2
nd
and 3
rd
Respondents were misappropriating the funds of the 1
st
Respondent (Kimcrush). The answer to such allegations which
appear at page 788 of the record specifically paragraphs 37 and
38.
The reply thereto that appears at pp 999 – 1012 specifically
paragraph 11 thereof.
(b)
The matter
of Senekal in full knowledge of the interdict on the bank account of
Kimcrush (Pty) used the Trust account of his firm,
Matsepes, in order
to circumvent the said interdict by Kimcrush (Pty) Ltd to pay their
debts into the relevant trust account.
Further allowing such
trust account to be used as a business account.
2.
The question of whether Mr Senekal misled this court is referred to
the free state law society
with specific reference to paragraph 5.5
up to and including paragraph 5.9 of this founding affidavit red with
the opposing affidavit
of Mr Pan which appears at pages 1194 to 1199
in case no 2616/2016.”
[7]
On 23 May 2017, the applicant received a letter from the respondent,
advising the applicant that the Council of the Respondent
has
resolved on
19
May 2017,
to
proceed with an application to strike the applicant from the roll of
attorneys after the above mentioned referral to it from
Lever AJ. I
shall herein after refer to this resolution as “the first
resolution”.
[8]
On 28 June 2017, the applicant was notified by the respondent that
the respondent’s Council took another resolution on
23
June 2017,
to
the effect that the applicant must appear before the Council to give
reasons why the Council should not proceed to bring an application
to
remove the applicant’s name from the roll of attorneys. I shall
herein after refer to this resolution as “the second
resolution”.
[9]
On 24 May 2017, the applicant wrote a letter to the respondent in
reply to the letter in which he was informed of the first
resolution. In this letter the applicant informed the
respondent that he did not have a chance to place his version before
the Council prior to the Council of the respondent reaching its first
resolution. He indicated that he throughout laboured under
the
impression that he be afforded that opportunity and that rule 50 of
the rules, governing disciplinary proceedings for
the attorneys
profession (published in a Government Notice), would be adhered to
and applied in this instance. He placed on record
that according to
him, the resolution was taken in contravention of his rights.
[10]
The applicant, through his attorney, wrote a letter to the respondent
on 26 May 2017 and also filed a formal request for documentation
in
terms of the
Promotion of Access to Information Act, Act
2 of 2000.
[11]
When the applicant received the notice of the second resolution, the
respondent informed him that the respondent’s council
will only
after the applicant’s appearance before it, consider the
production of the information requested in terms of Act
2 of 2000.
[12]
The applicant then received notice from the respondent to appear
before it on 21 September 2017, as envisaged by the second
resolution. Due to the unavailability of the applicant’s
counsel, this meeting did not take place and was postponed
by
agreement, although no date was fixed. The applicant’s attorney
however indicated to the respondent that the applicant
requires the
documentation requested, prior to him appearing before the council.
[13]
The applicant then received a letter dated
2
February 2018
,
from the respondent. This letter informed the applicant to appear
before the respondent’s council on 23 February 2018 to
give
reasons why the council should not proceed with the applicant’s
“suspension” application. The letter specifically
referred to a charge sheet annexed to it. The charge sheet
referred to a resolution adopted by the respondent’s council,
which was taken on
13
December 2017
that
the applicant should appear before the council and give reasons why
he should not be removed from the roll of attorneys, alternatively
suspended from practice. This resolution will be referred to
herein later as “the third resolution”. The said
charge
sheet contained the two matters referred by Lever AJ and a third
complaint lodged by one Claassen and Joluza Boerdery (PTY)
LTD.
[14]
The applicant then wrote a letter to the respondent on 12 February
2018, requesting a formal hearing (in terms of the provisions
of rule
50 (12) of the disciplinary proceedings, referred to above.). The
applicant also requested a postponement of the appearance
scheduled
for 23 February 2018. The respondent replied in a letter dated 21
February 2018, in which the request for a formal enquiry
was denied.
In this letter, the respondent itself, referred to the provisions of
rule 50.6.2.2. The respondent said that
in terms of that rule,
the applicant is called upon to come and furnish reasons why the
application to strike or suspend him should
not be proceeded with.
The respondent then rescheduled the appearance of the applicant to 8
March 2018. The matter did not
proceed on 8 March 2018.
[15]
On 6 April 2018, the applicant received a further notice from Me
Tumelo Leope, the acting director of the respondent in which
the
applicant were informed that the date for his appearance is now
scheduled for
20
April 2018
,
for written or oral submissions and indicated that it is an absolute
final postponement. This notice was never retracted before
this
matter served before this Court.
[16]
On 13 April 2018, the applicant’s attorney again wrote to the
respondent, requesting a postponement of the proceedings
to be held
on 20 April 2018. The reasons stated in the letter were that
the applicant still has not received the documents
he requested in
terms of his request for same in terms of Act 2 of 2000, that he
needs same to prepare and that the procedure the
respondent is
following is procedurally and administratively unfair. Me Leope
of the respondent replied on 17 April 2018
by letter stating that the
Councillors will, on
20 April 2018,
consider the
contents of the applicant’s attorneys letter dated 13 April
2018.
[17]
Since the letter of Me Leope dated 17 April 2018 did not clarify if
the respondent still requires the applicant to appear on
20 April
2018, the applicant’s attorney phoned Me Leope on 17 April 2018
to seek clarity. Me Leope was however not
prepared to go
further than the wording of the letter of 17 April 2018.
[18]
According to the applicant, he was therefore compelled to bring this
urgent application for the above mentioned relief. He
thus instructed
his counsel to draw this application as well as the review and compel
application, which was annexed to this application
as an annexure.
In the review application under case number
1953/2018,
which
was issued on
18
April 2018,
the
applicant in essence seeks to have the respondent’s decision to
bring an application to have his name struck from the
roll, reviewed
and set aside and he also wants the Court to compel the respondent to
furnish the applicant with the documentation
requested in terms of
Act 2 of 2000.
[19]
On 20 April 2018, the matter was then postponed by me, which was done
by agreement as indicated in paragraph [3],
supra
.
[20]
During the course of the argument on 10 May 2018, Mr Halgryn handed
up a Draft Order, which I have marked “X”,
as the order
the applicant seeks from this Court. The draft order amounts to a
clarification of what was sought in the notice of
motion. In essence
it remains an application for an interdict, pending the finalization
of the application for review under case
number
1953/2018.
It reads as follows:
“
1.
The Respondent be interdicted and restrained from proceeding with the
proceedings against the Applicant in
terms of the notifications by
the Respondent contained in annexure “S10” at page 84,
annexure “S10.1” at
page 85, annexure “S11”
at page 86, annexure “S15” at page 89 to 96, annexure
“S17” at page
99, annexure “T2” at page 107
and annexure “T3” at page 108 of the paginated papers
pending finalization
of the application launched by the Applicant in
this honourable Court under case number 1953/2018; and
2.
The Respondent be ordered to pay the costs of this Application on an
attorney and client
scale, including the costs of two counsel.”
IV
REQUISITES FOR AN INTERIM INTERDICT
[21]
The requisites for an interim interdict are the
following:
(a) a
prima facie right, although open to some doubt;
(b) a
well-grounded apprehension of irreparable harm if the interim relief
is not granted and the ultimate relief
is eventually granted;
(c)
the balance of convenience favours the granting of an interim
interdict and
(d)
applicant has no other satisfactory remedy.
[22]
It must be made clear that in order to evaluate the evidence and the
submissions of the parties in order to establish whether
the
requisites, such as a prima facie right has been established, it is
not required of this Court to adjudicate the application
as if it is
confronted with a review application. This in essence means
that although I may come to certain conclusions which
overlaps with
certain aspects pertaining to the review application, my conclusions
will obviously not bind the review Court.
V
A PRIMA FACIE RIGHT
[23]
At the heart of this application lies the Constitutional right to
just administrative action as enshrined in Section 33 of
the
Constitution of the Republic of South Africa, which reads as
follows:
“
33.
Just
administrative action.
(1) Everyone has the right to administrative action that is
lawful, reasonable and procedurally fair.
(2)
Everyone whose rights have been adversely affected by administrative
action has the right
to be given written reasons.
(3)
National legislation must be enacted to give effect to these rights,
and must-
(a)
provide for the review of administrative action by a court or, where
appropriate, an independent
and impartial tribunal;
(b)
impose a duty on the state to give effect to the rights in
subsections (1) and (2); and
(c)
promote an efficient administration.”
[24]
The test to be applied in an application for an interim interdict
pending the outcome of a review application was stated by
Moseneke
DCJ in
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others,
2012
(6) SA 223
(CC) (“the
Outa
case”)
in the following terms:
“
50.
Under the Setlogelo test the prima facie right a claimant must
establish is not merely the right to
approach a court in order to
review an administrative decision. It is a right to which, if not
protected by interdict, irreparable
harm would ensue. An interdict is
meant to prevent future conduct and not decisions already made. Quite
apart from the right to
review and to set aside impugned decisions,
the applicants should have demonstrated a prima facie right that is
threatened by an
impending or imminent irreparable harm.
[25]
In the decision of
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer of the South African Social Security Agency
and
Others
,
2014
(4) SA 179
(CC) (the
Allpay
case),
the following dictum by Froneman J in paragraph [42], is equally
applicable to this matter before me:
“
There can be no
doubt that the separation of powers attributes responsibility to the
Courts for ensuring that unconstitutional conduct
is declared invalid
and that constitutionally mandated remedies are afforded for the
violations of the Constitution. This means
that the Court must
provide effective relief for infringements of constitutional rights.”
[26]
It must also be remembered that the Attorneys Act, Act 53 of 1979,
predates the Constitution and the bill of rights enshrined
in it.
It is trite that when a Court interprets an act of Parliament it
should do so with the spirit and purport of the Constitution
of the
Republic of South Africa in mind. This is of course applicable
in this matter where the provisions of Sections 69,
71 and 72 of the
Attorneys Act, Act 53 of 1979 is or may be relevant. These
sections deal with the powers of the Council
of the respondent, the
enquiries by the Council and the disciplinary powers of the Council.
[27]
In this context it is also important to have regard to the fact rule
50 of the rules for the Attorneys profession, which deals
with
disciplinary proceedings of the respondent and its Council, was
promulgated in a Government Gazette No 39740 dated 26 February
2016.
It thus has the power of subordinate legislation and must thus be
adhered to where applicable.
[28]
The crux of this matter lies in the following: It is common
cause that when the respondent came to its first decision,
it
did so without affording the applicant a chance to present his
version as to whether or not the Council can or should come to
that
decision or not. The question is therefore whether the
applicant should have been afforded that opportunity or not.
If
he should have been afforded that opportunity, the applicant’s
most fundamental right to put his version before the Council
before
the decision was made, was denied (Audi alteram partem). In
that case, it must follow that the applicant has established
that he
has a prima facie right to the interim relief he is claiming in this
application before me. Put differently, if there
is a
reasonable possibility that the applicant might succeed on review,
on the basis that the resolution(s) passed by the
Council of the
respondent resolving to proceed with a striking application to have
the applicant’s name removed from the
roll of attorneys is,
reviewed and set aside, the applicant should succeed in this
application before me.
[29]
It is first of all important to have regard to the fact that when
Lever AJ referred the matters before him to the respondent,
he did so
on the basis that the respondent must determine and investigate the
matter thus referred. He did not make a finding
of
unprofessional conduct himself. At best, he probably had a
prima facie view of unprofessional conduct by the applicant
but his
referral envisaged a process of determination by the respondent.
That process had to be procedurally and administratively
fair as
contemplated by the Constitution of the Republic of South Africa.
[30]
It is common cause that no formal enquiry was held by the respondent,
prior to reaching the decision to move for a striking
application.
It would appear from the papers and more in particular annexure S19
that the Council of the respondent only
read the pleadings and
affidavits of the cases thus referred to it, before coming to its
decision. Something not even Lever
AJ did.
[31]
As indicated in paragraph [14],
supra
,
the respondent specifically referred to the fact that it is acting in
terms of rule 50.6.2.2 of the rules governing disciplinary
proceedings, referred to in prayer 2.1 of the notice of motion.
It follows therefore that the respondent itself, brought
this matter
into the realm and within the four corners of the said rule 50 as a
whole. From a proper reading of rule 50, it is
clear that rule
50.6.2.2 is a sub-section of rule 50.6. Rule 50.6 deals
specifically with the powers and options of the council
of the
respondent “
upon
receipt of a complaint”.
I
have grave doubts whether the referrals by Lever AJ constitutes
“complaints” in the true sense of the word.
Even if
it does, rule 50.6.2.2 empowers the Council of the respondent to call
upon a member to appear before the Council to “explain
or
elucidate or discuss the matter”. The options available
to the respondent’s council in rule 50.6.2.1 and 50.6.2.2
are
clearly procedural steps affording the member an opportunity to put
his version before the council
before
a
decision is taken.
[32]
It must be remembered that the first resolution of 19 May 2017, which
had to date not been rescinded by a court of law,
embodied a
decision already taken that an application will be made to have the
applicant’s name struck of the roll of attorneys.
The
second and third resolutions also, as a point of departure, has the
decision that had already been taken, to have the applicant’s
name struck of the roll, baring explanation from the applicant. This
must of course be seen within the context of the Full Bench
decision
in
Natal
Incorporated Law Society v De Beer
,
1950
(2) SA 531
(N) at 535 where the following dicta appears:
“
The ordinary
principles of our law require that a precise charge sheet should be
framed and notified and that the respondent be
given an opportunity
of meeting the charge and of defending himself at a trial. ….
That was not done here, Respondent never
had an opportunity of
defending himself on a charge of theft or misappropriation. He was
merely required to attend an enquiry at
which the committee proposed
to enquire into his conduct in relation to five cheques drawn by him
on the estate account…..
It is clear that, even if there had
been a conviction by a competent court of law on a criminal offence,
this Court would not act
on the conviction without affording
respondent an opportunity of canvassing the whole matter…”
[33]
Nicholas J found in
Meyer v Law Society Transvaal
,
1978 (2) SA 209
(T) at 218 E-G as follows:
“…
.. as the
elected representatives of the attorneys, Council members are
required to investigate the conduct of their professional
brethren,
in the interests of the profession and the general public.
Their decision may affect the whole career of the person
whose
conduct is in question, whether or not the Court makes an order
against him. Whatever the Court may decide, proceedings against
a
fellow attorney may leave a stain against his name in the eyes of the
public.”
[34]
There may well be instances where the council of the respondent may
approach the Court to have the name of a member struck
of the roll
without a formal enquiry preceding the application to Court.
[35]
To my mind, this case before me is not one of those instances.
The decisions referred to in paragraphs [32] and [33],
supra
,
both predates the Constitution of the Republic of South Africa.
Besides the fact that they do, the
De
Beer-
case
acknowledges the need for the formulation of proper charges, a trial
and the opportunity of such an attorney to defend himself
at such a
trial. Despite the applicant’s request for same
in
casu
,
he was denied such a trial. In the
Meyer-
case,
the far reaching consequences of the mere decision such as the one
in
casu
,
is emphasized.
[36]
Section 33 of the Constitution of the Republic of South Africa
clearly enshrines the right of everyone to administrative action
which is lawful, reasonable and procedurally fair. The above
mentioned decisions and the Attorneys Act, Act 53 of 1979, must be
viewed in that context.
[37]
If this is properly done, the argument raised on behalf of the
respondent that the applicant will get the chance to put his
version
before Court when the application for the striking of his name from
the roll of attorneys is brought, is fatally flawed.
In the
circumstances and on the factual basis I have already alluded to
above, the applicant should have had that opportunity to
state his
case before the decision was made to strike his name from the roll.
The only sensible way to have done that, was
to hold a formal enquiry
as envisaged by rule 50. The applicant’s fundamental
right to be heard before the decision
was made, was thus denied and
it can thus in the circumstances not be said that the administrative
action of the respondent was
lawful, reasonable and administratively
fair. To my mind, the applicant thus has a reasonable chance of
succeeding with the review
application. That being so, I
conclude that the applicant satisfied the first requisite of an
interim interdict, to wit,
a prima facie right.
VI
A
WELL GROUNDED APPREHENSION OF IRREPARABLE HARM and BALANCE OF
CONVENIENCE
[38]
On my finding that in the particular circumstances of this matter a
formal enquiry should have been held where the applicant
had to be
afforded the opportunity to state his case, prior to the decision
being made, which was not done; It is clear that the
applicant will
suffer irreparable harm and that the balance of convenience favours
the granting of the interim interdict.
In the premises,
the applicant also satisfied these two requisites of an interim
interdict.
VII
NO OTHER SATISFACTORY REMEDY
[39]
In view of the factual basis set out in paragraphs [16], [17] and
[18],
supra
,
the applicant had no other satisfactory remedy but to approach this
Court for this relief.
VIII
COSTS
[40]
The applicant moves for an order of costs against the Respondent on
an attorney and client scale. There is no reason
why the award
of costs should not follow the result, but I can see no reason for a
punitive order of costs.
IX
ORDER
[41]
In the premises I make the following order:
1.
The
respondent is interdicted and restrained from proceeding with the
proceedings against the applicant in terms of the notifications
by
the respondent contained in annexure “S10” at page 84,
annexure “S10.1” at page 85, annexure “S11”
at page 86, annexure “S15” at pages 89 to 96,
annexure “S17” at page 99, annexure “T2”
at page 107 and annexure “T3” at page 108 of the
paginated papers, pending finalization of the application
launched
by the applicant in this Court under case number 1953/2018.
2.
The
respondent is ordered to pay the costs of this application, which
costs will include the costs of two counsel, where employed.
______________
L.
POHL, AJ
On
behalf of applicant:
Adv. L Halgryn SC
Adv. C Snyman
Instructed
by:
Eugene Attorneys
Bloemfontein
On
behalf of respondent: NW Phalatsi
Instructed
by:
NW Phalatsi & Partners
Bloemfontein